Filed: Jan. 28, 2016
Latest Update: Mar. 02, 2020
Summary: 15-1856 Lu v. Lynch BIA A077 920 919 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY
Summary: 15-1856 Lu v. Lynch BIA A077 920 919 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY O..
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15-1856
Lu v. Lynch
BIA
A077 920 919
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of January, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 MING LU,
14 Petitioner,
15
16 v. 15-1856
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Chunyu Jean Wang, Flushing, New
24 York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Anthony
28 W. Norwood, Senior Litigation
29 Counsel; Siu P. Wong, Trial
30 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Ming Lu, a native and citizen of the People’s
10 Republic of China, seeks review of a June 5, 2015, decision of
11 the BIA denying his motion to reopen. In re Ming Lu, No. A077
12 920 919 (B.I.A. June 5, 2015). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed the BIA’s denial of Lu’s motion to reopen
16 for abuse of discretion, and its factual findings regarding
17 country conditions under the substantial evidence standard.
18 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
19 2008). It is undisputed that Lu’s 2015 motion to reopen was
20 untimely because it was filed more than twelve years after the
21 agency’s order of removal became final in 2002. See 8 U.S.C.
22 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
2
1 The BIA did not err in declining to equitably toll the time
2 to file based on Lu’s allegations of ineffective assistance of
3 counsel. In order to warrant equitable tolling, even assuming
4 that prior counsel was ineffective, an alien is required to
5 demonstrate “due diligence” in pursuing his claim during “both
6 the period of time before the ineffective assistance of counsel
7 was or should have been discovered and the period from that point
8 until the motion to reopen is filed.” Rashid v. Mukasey, 533
9 F.3d 127, 132 (2d Cir. 2008); see also Cekic v. INS,
435 F.3d
10 167, 170 (2d Cir. 2006).
11 Lu failed to demonstrate due diligence. He did not
12 describe taking any action to pursue reopening based on the
13 alleged ineffective assistance of his former counsel in the
14 twelve years prior to being placed in immigration detention and
15 hiring his current attorney to file a motion to reopen. See
16 Jian Hua Wang v. BIA,
508 F.3d 710, 715-16 (2d Cir. 2007). Lu
17 faults the BIA for failing to identify when a reasonable person
18 in his circumstances would have been expected to discover the
19 ineffective assistance. However, Lu was aware of all of the
20 issues underlying his ineffective assistance claim at the time
21 of his 2001 hearing before the IJ and thus should have discovered
3
1 the ineffective assistance at some point prior to being taken
2 into custody in 2015. See Rashid, 533 F.3d at 132-33 (“[E]ven
3 if [the petitioner] did not immediately realize . . . that his
4 counsel had been ineffective, due diligence required that he
5 follow up with his attorney after the DHS decision, and if he
6 received no response, to obtain new counsel, seek relief from
7 the agency on his own, or take other affirmative action.”); see
8 also Jian Hua
Wang, 508 F.3d at 715.
9 Accordingly, the BIA did not err in finding that Lu failed
10 to demonstrate due diligence. See Jian Hua
Wang, 508 F.3d at
11 715. That finding was dispositive of Lu’s motion insofar as
12 he sought reopening or equitable tolling based on ineffective
13 assistance. See
Rashid, 533 F.3d at 131.
14 The BIA also reasonably found that Lu failed to demonstrate
15 a material change in the enforcement of the family planning
16 policy in China since his 2001 hearing as required to excuse
17 his motion from the time limitation based on changed country
18 conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also In re
19 S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (“In determining
20 whether evidence accompanying a motion to reopen demonstrates
21 a material change in country conditions that would justify
4
1 reopening, [the BIA] compare[s] the evidence of country
2 conditions submitted with the motion to those that existed at
3 the time of the merits hearing below.”). As the BIA found, the
4 U.S. Department of State reports demonstrate that the Chinese
5 government has used economic incentives to enforce the family
6 planning policy since the time of Lu’s hearing with only
7 isolated incidents of persecutory force reported. See Jian Hui
8 Shao, 546 F.3d at 159-66. Therefore, the record does not compel
9 the conclusion that conditions in China have materially
10 changed. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Jian Hui
11
Shao, 546 F.3d at 171.
12 Finally, Lu’s purported eligibility to adjust status did
13 not excuse the time limitation. See 8 U.S.C. § 1229a(c)(7)(C);
14 8 C.F.R. § 1003.2(c); In re Yauri, 25 I. & N. Dec. 103, 105 (BIA
15 2009) (emphasizing “that untimely motions to reopen to pursue
16 an application for adjustment of status . . . do not fall within
17 any of the statutory or regulatory exceptions to the time limits
18 for motions to reopen before the Board”). We lack jurisdiction
19 to review the BIA’s decision insofar as it declined to reopen
20 sua sponte based on the pending visa petition. See Mahmood v.
5
1 Holder, 570 F.3d 466, 469 (2d Cir. 2009); Ali v. Gonzales, 448
2 F.3d 515, 518 (2d Cir. 2006).
3 Accordingly, because Lu failed to establish any exception
4 to the time limitation, the BIA did not abuse its discretion
5 in denying his motion as untimely. See 8 U.S.C.
6 § 1229a(c)(7)(C).
7 For the foregoing reasons, the petition for review is
8 DENIED, Lu’s stay motion is DENIED as moot, and Lu’s sanction
9 motion is DENIED. The forbearance policy does not go into
10 effect until a petitioner files a stay motion. Any pending
11 request for oral argument in this petition is DENIED in
12 accordance with Federal Rule of Appellate Procedure 34(a)(2),
13 and Second Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
6
